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Proposed Rule

Records Declassification

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Start Preamble

AGENCY:

National Archives and Records Administration (NARA).

ACTION:

Proposed rule.

SUMMARY:

NARA has reviewed its regulations related to declassification of national security-classified information in records transferred to NARA's legal custody. NARA is updating them to incorporate changes resulting from Executive Order 12958, Classified National Security Information. The changes in this proposed rule include:

—Revising the timeline for systematic review from 30 years to 25 years.

—Redefining declassification responsibilities to reflect the E.O. 12958 requirement for agencies to maintain systematic review programs.

—Adding requirements for agencies that elect to review their accessioned records at NARA.

—Adding requirements for loaning records to agencies for declassification review.

—Revising requirements for reclassification of information to meet the provisions of E.O. 12958.

The proposed rule will affect members of the public who file mandatory review requests and Federal agencies.

DATES:

Comments must be received on or before April 17, 2000.

ADDRESSES:

Send comments to Regulation Comment Desk, NPLN, Room 4100, National Archives and Records Administration, 8601 Adelphi Road, College Park, Maryland, 10740-6001. You may also fax comments to (301) 713-7270.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Nancy Allard or Shawn Morton at (301) 713-7360.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

Following is a discussion of substantive changes contained in this proposed rule. The proposed rule is written in plain language in accordance with the Presidential Memorandum of June 1, 1998, Plain Language in Government Writing. Additional nonsubstantive changes, such as updated addresses, have been made throughout this proposed rule.

We are reorganizing Subpart A to include general information that is found in the current § 1260.1, including definitions for systematic review and mandatory review, and sections on the purpose, scope, and authority of this regulation. Executive Order 12958 changes the timeline for systematic review from 30 years to 25 years, and it also requires that agencies retain the responsibility for systematic review for older records; however, they may delegate declassification authority to NARA by providing declassification guidance to NARA. This redefinition of responsibilities is reflected in the proposed § 1260.20, which is a change to the existing § 1260.2(c) that gave NARA declassification responsibility for records more than 30 years old. The proposed §§ 1260.22 and 1260.26 detail declassification responsibilities for White House originated information and intelligence and cryptography information. The responsibilities in these proposed sections are unchanged from the responsibilities outlined in the existing § 1260.2. The proposed § 1260.24 assigns declassification responsibility for foreign government information to the agency that received the information regardless of the age of the information. This is a change from the existing § 1260.2(b) and (c) that gave NARA the responsibility for Start Printed Page 8078declassification review of foreign government information that is more than 30 years old.

Subpart C is retitled “Systematic Review.” The proposed § 1260.40 stipulates that NARA will review for declassification under systematic review all records in its holdings that are over 25 years old. However, the originating agencies may choose to review these records themselves by sending personnel to the NARA facility in which the records are located to conduct the review. The proposed § 1260.42 outlines the rules for agencies that wish to send personnel to a NARA facility to conduct a systematic declassification review. Agency reviewers must abide by NARA security regulations and procedures for handling archival materials. Agency reviewers also must obtain approval from NARA before using scanners, microfilm readers or other equipment to copy or read original records. The proposed § 1260.44 explains procedures for NARA to loan original records back to agencies for declassification review if agency reviewers cannot work at a NARA facility. NARA will inspect areas in which loaned records are to be stored and reviewed to ensure that the records are maintained in archivally acceptable conditions and that the areas meet the standards for the storage and handling of national security-classified materials. The requesting agencies must abide by NARA procedures for handling and preserving original records.

The proposed § 1260.50, which consists of the current §§ 1260.10 and 1260.30, details NARA's responsibilities for handling mandatory review requests for Executive branch records. NARA will refer copies of records in its possession that are less than 25 years old back to the originating agencies for declassification review. Agencies may also send agency reviewers to NARA to review records on-site. The agency responsibilities and the appellate process under mandatory review in the proposed §§ 1260.52 and 1260.54 are essentially unchanged from the existing §§ 1260.12 and 1260.32. The proposed § 1260.58, which contains portions of the existing §§ 1260.42 and 1260.50, discusses how NARA will handle mandatory review requests for White House originated information.

Procedures for reclassifying records are moved to the proposed Subpart E, and encompass the existing §§ 1260.70 through 1260.74. These regulations are essentially unchanged, except that we include a provision in the proposed § 1260.74 that states that NARA will notify the requesting agency if NARA appeals a reclassification request to ISOO.

This proposed rule is not a significant regulatory action for the purposes of Executive Order 12866. As required by the Regulatory Flexibility Act, it is hereby certified that this proposed rule will not have a significant impact on a substantial number of small entities because it applies to Federal agencies.

Start List of Subjects

List of Subjects in 36 CFR Part 1260

End List of Subjects Start Amendment Part

For the reasons stated in the preamble, the National Archives and Records Administration proposes to revise

End Amendment Part Start Part SUBCHAPTER D—DECLASSIFICATION End Part Start Part

PART 1260—DECLASSIFICATION OF NATIONAL SECURITY INFORMATION

Subpart A—General Information

1260.1
What is the purpose of this regulation?
1260.2
Definitions.
1260.4
What NARA holdings are covered by this regulation?
1260.6
What is the authority for this regulation?
Subpart B—Responsibilities
1260.20
Who is responsible for the declassification of national security-classified Executive Branch information that has been accessioned by NARA?
1260.22
Who is responsible for the declassification of national security-classified White House originated information in NARA's holdings?
1260.24
Who is responsible for declassification of foreign government information in NARA's holdings?
1260.26
Who is responsible for declassification of information concerning intelligence or cryptography in NARA's holdings?
Subpart C—Systematic Review
1260.40
How will records at NARA be reviewed for declassification?
1260.42
What are the procedures for agency personnel to review records at a NARA facility?
1260.44
Will NARA loan accessioned records back to the agencies to conduct declassification review?
Subpart D—Mandatory Review Executive Branch Records
1260.50
What procedures does NARA follow when it receives a request for Executive Branch records under mandatory review?
1260.52
What are agency responsibilities when it receives a mandatory review request forwarded by NARA?
1260.54
What is the appeal process when a mandatory review request for Executive Branch information is denied?
White House Originated Information
1260.56
Is White House originated information subject to mandatory review?
1260.58
What are the procedures for requesting a mandatory review of White House originated information?
1260.60
What are agency responsibilities with regard to mandatory review requests for White House originated information?
1260.62
What are the procedures when agencies receive a mandatory review request for White House originated information in their custody?
1260.64
What is the appeal process when a mandatory review request for White House originated information is denied?
Subpart E—Reclassification
1260.70
Can Executive Branch information be reclassified?
1260.72
Can White House information be reclassified?
1260.74
Can NARA appeal a request to reclassify information?
Start Authority

Authority: 44 U.S.C. 2101 to 2118; 5 U.S.C. 552; EO 12958, 60 FR 19825, 3 CFR, 1995 Comp., p.333; EO 13142, 64 FR 66089

End Authority

Subpart A—General Information

What is the purpose of this regulation?

This regulation defines the responsibilities of NARA and other Federal agencies for declassification of national security classified information in the holdings of NARA. This part also provides procedures for conducting systematic reviews of NARA holdings and for processing mandatory review requests for NARA holdings. Regulations for researchers wishing to request Federal records under the Freedom of Information Act (FOIA) or under mandatory review can be found in 36 CFR 1254.38.

Definitions.

(a) Systematic declassification review means the review for declassification of national security-classified information contained in records that have been determined by the Archivist of the United States to have permanent value in accordance with 44 U.S.C. 2107.

(b) Mandatory declassification review means the review for declassification of national security-classified information in response to a request for declassification that meets the requirements under section 3.6 of Executive Order 12958.

What NARA holdings are covered by this regulation?

The NARA holdings covered by this regulation are records legally transferred to the National Archives and Records Administration (NARA), including Federal records accessioned into the Start Printed Page 8079National Archives of the United States; and Presidential records; Nixon Presidential materials, and donated historical materials in Presidential Libraries and in the National Archives of the United States.

What is the authority for this regulation?

Declassification of and public access to national security information is governed by Executive Order 12958 of April 17, 1995 (3 CFR 1995 Comp., p. 333) and by the Information Security Oversight Office Implementing Directive for Executive Order 12958 (32 CFR part 2001).

Subpart B—Responsibilities

Who is responsible for the declassification of national security-classified Executive Branch information that has been accessioned by NARA?

(a) Information less than 25 years old. The originating agency is responsible for its declassification.

(b) Information more than 25 years old. The originating agency retains the ultimate responsibility for declassification but may delegate declassification authority to NARA in the form of declassification guidance.

(c) Information in records of a defunct agency. NARA is responsible for the declassification of records of a defunct agency that has no successor in function. NARA will consult with agencies having primary subject matter interest before making declassification determinations.

Who is responsible for the declassification of national security-classified White House originated information in NARA's holdings?

(a) NARA is responsible for declassification of information from a previous administration that was originated by:

(1) The President;

(2) The White House staff;

(3) Committees, commissions, or boards appointed by the President; or

(4) Others specifically providing advice and counsel to the President or acting on behalf of the President.

(b) NARA will consult with agencies having primary subject matter interest before making declassification determinations.

Who is responsible for declassification of foreign government information in NARA's holdings?

(a) The agency that received or classified the information is responsible for its declassification.

(b) In the case of a defunct agency, NARA is responsible for declassification of foreign government information in its holdings and will consult with the agencies having primary subject matter interest before making declassification determinations.

Who is responsible for declassification of information concerning intelligence or cryptography in NARA's holdings?

(a) The Director of the Central Intelligence Agency is responsible for declassification of information concerning intelligence activities and intelligence sources and methods.

(b) The Secretary of Defense is responsible for declassification of information concerning cryptography.

Subpart C—Systematic Review

How will records at NARA be reviewed for declassification?

(a) NARA staff will systematically review for declassification records over 25 years old for which the originating agencies have provided declassification guidance if the originating agency does not wish to review the records itself.

(b) Agencies may choose to review their own records that are over 25 years old themselves by sending personnel to the NARA facility where the records are located to conduct the declassification review.

(c) The originating agency must review records less than 25 years old and records for which the originating agency has not provided declassification guidance.

What are the procedures for agency personnel to review records at a NARA facility?

(a) NARA will make the records available to properly cleared agency reviewers. NARA will provide space for agency reviewers in the facility in which the records are located as space is available. NARA will also provide training and guidance for agency reviewers on the proper handling of archival materials.

(b) Agency reviewers must:

(1) Follow NARA security regulations and abide by NARA procedures for handling archival materials;

(2) Follow NARA procedures for identifying and marking documents that cannot be declassified; and

(3) Obtain permission from NARA before bringing into a NARA facility computers, scanners, tape recorders, microfilm readers and other equipment necessary to view or copy records. NARA will not allow the use of any equipment that poses an unacceptable risk of damage to archival materials. See 36 CFR 1254.26 and 1254.27 for more information on acceptable equipment.

Will NARA loan accessioned records back to the agencies to conduct declassification review?

In rare cases, when agency reviewers cannot be accommodated at a NARA facility, NARA will consider a request to loan records back to an originating agency in the Washington, DC metropolitan area for declassification review. Each request will be judged on a case-by-case basis. The requesting agency must:

(a) Ensure that the facility in which the documents will be stored and reviewed passes a NARA inspection to ensure that the facility maintains:

(1) The correct archival environment for the storage of permanent records; and

(2) The correct security conditions for the storage and handling of national security-classified materials.

(b) Meet NARA requirements for ensuring the safety of the records;

(c) Abide by NARA procedures for handling of archival materials;

(d) Identify and mark documents that cannot be declassified in accordance with NARA procedures; and

(e) Obtain NARA approval of any equipment such as scanners, copiers, or cameras to ensure that they do not pose an unacceptable risk of damage to archival materials.

Subpart D—Mandatory Review

Executive Branch Records

What procedures does NARA follow when it receives a request for Executive Branch records under mandatory review?

(a) If the requested records are less than 25 years old, NARA refers copies of the records to the originating agency or to the agency that has primary subject matter interest for declassification review. Agencies may also send personnel to a NARA facility where the records are located to conduct a declassification review.

(b) If the requested records are more than 25 years old, NARA will review the records using systematic declassification guidance. NARA will refer any documents it is unable to declassify to the appropriate agency for declassification determinations.

(c) When the records were originated by a defunct agency that has no successor agency, NARA is responsible for making the declassification determinations, but will consult with agencies having primary subject matter interest.

(d) In every case, NARA will acknowledge receipt of the request and inform the requester of the action taken. If additional time is necessary to make Start Printed Page 8080a declassification determination, NARA will tell the requester how long it will take to process the request. NARA will also tell the requester if part or all of the requested information is referred to other agencies for declassification review.

What are agency responsibilities when it receives a mandatory review request forwarded by NARA?

(a) The agency must make a determination within 180 calendar days after receiving the request or inform NARA of the additional time needed to process the request. If an initial decision has not been made on the request within 1 year after the original date of the request, the requester may appeal to the Interagency Security Classification Appeals Panel (ISCAP).

(b) The agency must notify NARA of any other agency to which it forwards the request in those cases requiring the declassification determination of another agency.

(c) The agency must return to NARA a complete copy of each declassified document with the agency determination. If documents cannot be declassified in their entirety, the agency must return to NARA a copy of the documents with those portions that must be withheld clearly marked.

(d) The agency must also furnish, for transmission to the requester, a brief statement of the reasons the requested information cannot be declassified and a statement of the requester's right to appeal the decision, along with the procedures for filing an appeal and the name, title, and address of the appeal authority.

What is the appeal process when a mandatory review request for Executive Branch information was denied?

(a) If an agency denies a declassification request under mandatory review, the requester may appeal directly to the appeal authority at that agency.

(b) If requested by the agency, NARA will supply the agency with:

(1) Copies of NARA's letter to the requester transmitting the agency denial; and

(2) Copies of any documents denied in part that were furnished to the requester.

(c) The agency appeal authority must notify NARA in writing of the final determination and of the reasons for any denial.

(d) The agency must furnish to NARA a complete copy of any document they released to the requester only in part, clearly marked to indicate the portions that remain classified. NARA will give the requester a copy of any notifications from the agencies that describe what information has been denied and what the requesters appeal rights are.

(e) In the case of an appeal for information originated by a defunct agency, NARA will notify the requester of the results and furnish copies of documents declassified in full and in part. If the request cannot be declassified in its entirety, NARA will send the requester a brief statement of why the requested information cannot be declassified and a notice of the right to appeal the determination within 60 calendar days to the Deputy Archivist of the United States, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001.

White House Originated Information

Is White House originated information subject to mandatory review?

White House originated information is subject to mandatory review consistent with the Presidential Records Act, the Presidential Materials and Recordings Act, and any deeds of gift that pertain to the materials or the respective Presidential administrations. Unless precluded by such laws or agreements, White House originated information is subject to mandatory review 5 years after the close of the administration which created the materials or when the materials have been archivally processed, whichever occurs first.

What are the procedures for requesting a mandatory review of White House originated information?

(a) NARA will promptly acknowledge to the requester the receipt of a request for White House originated information.

(b) If the requested information is less than 25 years old, NARA will consult with agencies having primary subject matter interest and request their recommendations regarding declassification.

(c) If the requested information is more than 25 years old, NARA will review the information using applicable systematic review guidance. NARA will refer any documents that cannot be declassified using systematic guidance to the agencies with primary subject matter interest for their recommendations regarding declassification.

(d) NARA will notify the requester of the results and furnish copies of the documents declassified in full and in part. If the requested records are not declassified in their entirety, NARA will send the requester a brief statement of the reasons the information cannot be declassified and a notice of the right to appeal the determination within 60 calendar days to the Deputy Archivist of the United States, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001.

What are agency responsibilities with regard to mandatory review requests for White House originated information?

When an agency receives a mandatory review request from NARA for consultation on declassification of White House originated material, whether it is an initial request or an appeal, the agency must:

(a) Advise the Archivist whether the information should be declassified in-whole or in part or should continue to be exempt from declassification;

(b) Provide NARA a brief statement of the reasons for any denial of declassification; and

(c) Return all reproductions referred for consultation, including a complete copy of each document that should be released only in part, clearly marked to indicate the portions that remain classified.

What are the procedures when agencies receive a mandatory review request for White House originated information in their custody?

(a) If an agency that has custody of classified White House originated information of a previous administration receives a request for mandatory review, the agency will forward to the Office of Presidential Libraries, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001:

(1) The request for mandatory review;

(2) Copies of the documents containing the requested information; and

(3) A recommendation concerning declassification.

(b) NARA will make a determination on declassification after consulting with any other agency with primary subject matter interest and will notify the requester. If the request is denied in-whole or in part, the requester may appeal the decision within 60 calendar days after receiving the denial. The appeal should be sent to the Deputy Archivist of the United States, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001.

What is the appeal process when a mandatory review request for White House originated information is denied?

(a) When the Deputy Archivist of the United States receives an appeal, he/she will review the decision to deny the information and consult with the Start Printed Page 8081appellate authorities in the agencies having primary subject matter interest in the information.

(b) NARA will notify the requester of the determination and make available any additional information that has been declassified as a result of the requester's appeal.

(c) NARA will also notify the requester of the right to appeal denials of access to the Executive Secretary of the Interagency Security Classification Appeals Panel, Attn: Mandatory Review Appeals, c/o Information Security Oversight Office, National Archives and Records Administration, 700 Pennsylvania Avenue, NW, Room 5W, Washington, DC 20408.

Subpart E—Reclassification

Can Executive Branch information be reclassified?

(a) An agency may ask NARA to temporarily close, re-review, and possibly reclassify records and donated historical materials originated by the agency. Records that were declassified in accordance with E.O. 12958 (or predecessor orders) may be reclassified only if the information is less than 25 years old and has not been previously disclosed to the public. Agencies must submit in writing requests to reclassify Executive Branch records to the Assistant Archivist for Records Services—Washington, DC, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. Requests to reclassify information in Presidential libraries must be submitted in writing to the Assistant Archivist for Presidential Libraries, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. In the request, the agency must:

(1) Identify the records or donated materials involved as specifically as possible;

(2) Explain the reason the re-review and possible reclassification may be necessary; and

(3) Provide any information the agency may have concerning any previous public disclosure of the information.

(b) If the urgency of the request precludes a written request, an authorized agency official may make a preliminary request by telephone and follow up with a written request within 5 workdays.

Can White House originated information be reclassified?

An agency may ask NARA to temporarily close, re-review, and possibly reclassify White House originated information that has been declassified in accordance with E.O. 12958 (or predecessor orders) only if it has not been previously disclosed to the public. The agency must follow the same procedures as a request for reclassification of agency originated information in 36 CFR 1260.70, but it must submit the request to the Assistant Archivist for Presidential Libraries, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001.

Can NARA appeal a request to reclassify information?

NARA may appeal to the Director of the Information Security Oversight Office any re-review or reclassification request from an agency when, in the Archivist's opinion, the facts of previous disclosure suggest that such action is unwarranted or unjustified. NARA will notify the requesting agency that it is appealing the request at the same time that it initiates the appeal.

Start Signature

Dated: February 11, 2000.

John W. Carlin,

Archivist of the United States.

End Signature End Part End Supplemental Information

[FR Doc. 00-3729 Filed 2-16-00; 8:45 am]

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